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#1918073 - 04/28/14 04:31 PM Supreme Court accepts TIL case on Recission
fmissle Offline
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Joined: Jul 2007
Posts: 1,026
Pac NW
http://www.scotusblog.com/case-files/cases/jesinoski-v-countrywide-home-loans-inc/
The Supreme Court today agreed to hear a case on rescission.
The case is Jesinoski v. Countrywide Home Loans, Inc.

Quote:
Issue: Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.


In this case, the Borrowers sent a notice of rescission to the lender (just before three years was up). The Lender declined to rescind the loan and provided a copy of a signed statement from the Borrower which indicated that had received 2 copies of the Right to Rescind form at closing.

Essentially, this case is about whether the lawsuit for a contested rescission needs to be brought before the three years is up, or if only the notice of rescission needs to be provided to the lender before the three years is up.

Arguments will be this fall sometime.

(apologies if this would be better somewhere else. Mods should feel free to move it.)

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#1976299 - 11/13/14 10:08 PM Re: Supreme Court accepts TIL case on Recission fmissle
fmissle Offline
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Joined: Jul 2007
Posts: 1,026
Pac NW
The arguments in this case were last week (11/4/14).

For those of you who enjoy this type of thing, the transcripts of the oral arguments are available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-684_4425.pdf

SCTOUSblog has some analysis on the argument here:
http://www.scotusblog.com/2014/11/argume...ission-dispute/

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#1988277 - 01/13/15 04:21 PM Re: Supreme Court accepts TIL case on Recission fmissle
fmissle Offline
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Joined: Jul 2007
Posts: 1,026
Pac NW
The Supreme Court today issued it's opinion on the case which was argued this past fall. It held unanimously that a person exercising their right to rescind need only provide notice within the three year period, not file suit.

http://www.supremecourt.gov/opinions/14pdf/13-684_ba7d.pdf

Quote:
Exactly three years after borrowing money from respondent Countrywide Home Loans, Inc., to refinance their home mortgage, petitioners Larry and Cheryle Jesinoski sent Countrywide and respondent Bank of America Home Loans, which had acquired Countrywide, a letter purporting to rescind the transaction. Bank of America replied, refusing to acknowledge the rescission’s validity. One year and one day later, the Jesinoskis filed suit in federal court, seeking a declaration of rescission and damages. The District Court entered judgment on the pleadings for respondents, concluding that a borrower can exercise the Truth in Lending Act’s right to rescind a loan, see 15 U. S. C.§1635(a), (f), only by filing a lawsuit within three years of the date the loan was consummated. The Jesinoskis’ complaint, filed four years and one day after the loan’s consummation, was ineffective. The Eighth Circuit affirmed.

Held
A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file suit within that period. Section 1635(a)’s unequivocal terms a borrower “shall have the right to rescind . . . by notifying the creditor. . . of his intention to do so
” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the right to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condition precedent to rescission at aw, see §1635(b), hardly implies that
the Act thereby codified rescission in equity.
Pp. 2–5.
729 F. 3d 1092, reversed and remanded.
SCALIA, J., delivered the opinion for a unanimous Court.

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#1988425 - 01/13/15 07:59 PM Re: Supreme Court accepts TIL case on Recission fmissle
John Burnett Offline
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John Burnett
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Posts: 40,086
Cape Cod
And now the case below (the Jasinoskis' case against B of A) will go forward to decide whether there was a rescission right.
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John S. Burnett
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#1988472 - 01/13/15 09:01 PM Re: Supreme Court accepts TIL case on Recission John Burnett
fmissle Offline
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Joined: Jul 2007
Posts: 1,026
Pac NW
Originally Posted By: John Burnett
And now the case below (the Jasinoskis' case against B of A) will go forward to decide whether there was a rescission right.


And that's really the part that would affect us. If I recall correctly, there was a signed document acknowledging receipt of two copies of the Rescission Notice. So I'm not sure how they win that one.

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#1988610 - 01/14/15 04:24 PM Re: Supreme Court accepts TIL case on Recission fmissle
John Burnett Offline
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John Burnett
Joined: Oct 2000
Posts: 40,086
Cape Cod
The argument in these cases (the ones for rescission within the 3-year period following consummation) is that (1) the lender didn't provide the appropriate number of rescission right notices (2 per consumer with rescission right; one if the notice is delivered electronically under E-Sign); (2) the notice of rescission was somehow faulty; (3) not all the "material disclosures" were provided.

There could also be an argument that because of a faulty E-Sign "dance," the material disclosures were never legally given.

These "11th hour" rescission attempts are often reactions to a foreclosure threat by the lender.
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John S. Burnett
BankersOnline.com
Fighting for Compliance since 1976
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